Petition struck out - 15 months ago - but they're at it again...

[bottomburp]

Hi, I wonder if anyone can help me here.

 

Briefly a creditor petitioned for my bankruptcy in London. I had the claim moved to my local court where it was allocated a new claim number.

 

In June 2011 the bankruptcy hearing in my LOCAL court was vacated by consent between the parties. The Order says

 

"1. The hearing listed for ... June 2011 be vacated.

2. The petition and the Respondent's application be adjourned generally with liberty to restore; if no request to restore is made by 4.00pm on ...September 2011 then the petition and the Respondent's application shall stand struck out."

 

The next I heard the Creditor had applied (using the old London claim number) to the LONDON county court - despite it having been moved to my local court - asking for the order to be varied to read "...restore by 4.00pm on ... December 2011."

 

The London Court, though it no longer had jurisdiction, duly ordered:

 

1. The order dated......2011 be varied to read .. December 2011 in pace of .. September 2011

2. Any party affected by the order may apply within 7 days of service to have this order varied, set aside or revoked. The Application must be made at the Court where the matter is held".

 

The Claimant then "restored" the hearing to .. May 2012 - at the London Court. Again it was using the old London claim number. I only found out about any of this when the Claimant sent me the London court’s Order and notice of hearing date.

 

I kicked up about this as I had not been notified anything was going on and in any event it was going on in the wrong court.

 

The claimant then wrote to my local court who replied in January 2012 “Please find enclosed a copy of the Order of .. June 2011 stating that if no application to restore is made by 22 September 2011 then the petition will stand struck out. If you would like to apply to reinstate this matter you will to make the appropriate application and pay the court fee..”

 

The claimant wrote to the court again and in March 2012 the court replied, “This court has had no involvement with the orders of the London Court which are certainly not on this Court’s file. As far as this Court is concerned matters stand struck out…”

 

I hear nothing then, in December 2012, I get an application to restore the petition.

 

Bear in mind that my local court’s Order, striking out the petition, was made in June 2011, some 18 months previously.

 

The Claimant admits that they put the wrong claim numbers on their application and cause the matter to be sent back to London but claim that this delay has not prejudiced me… I reckon it has because 18 months passed before they woke-up and started trying to reinstate at the correct court.

 

Any suggestions as to how I deal with this?

The other “little” points I should mention is that my application (that was struck out at the same time of the petition) was made because they had not served the statutory demand on me - I never received it. At the time they knew who my solicitor was, knew my mobile phone number etc but made no effort to contact me by phone or my solicitor. They lied to the court and said they had no way of getting in touch with me so were allowed substituted service.

They then did not serve the bankruptcy petition on me - again misleading the court into allowing substituted service - though the solicitor and mobile phone number were still current.

Having failed to serve with the SD or Petition they did a search and found the address I had been living at when they didn’t serve the SD… it goes on and on. This is a bank and they have a judgment for the debt - I dispute the validity of judgment but that's a whole other story.

Durig this time I have been trying to negotiate an agreement with the Bank but the solicitors have refused to set up a meeting with them...

But these points in italics are not the ones I need answered right this moment…

The question I really need answered now is can they get away with reinstating the claim some 18 months after the order / 15 months after the deadline in the order?

At what stage can I get the judge to say “sorry bank, you’ve had your chance and fluffed it, stop harassing this person. END OF.” ?

[Conniff]

Is it a Bank doing this or has it been passed/bought by a debt collection company ?

[bottomburp]

It is the bank. They have instructed solicitors.

[Conniff]

Are we talking large amounts? as bankruptcy can be for anything £750 or over.

 

Are you admitting to the amount owed ? if so, you should start a payment to them as soon as possible, it doesn't matter if they agree to the amount or not, just keep it going.

Showing you can afford to and are reducing the outstanding balance can only go in your favour and could even thwart any petition.

 

Has the London affair completely ended now ie is the only reference to your local court.

 

You could always remind them of the fact they had full details of your address and if they have used them in the past suggest that attempting to obtain a petition by stealth is akin to fraud.

[bottomburp]

Around £180k.

 

My point is - the June 2011 local Court's Order said " ...The petition and the Respondent's application be adjourned generally with liberty to restore; if no request to restore is made by 4.00pm on ...September 2011 then the petition and the Respondent's application shall stand struck out."

 

They did not request restoration at the local Court, going back to London instead. Then when they realised their error (in Jan / March 2012 they wrote to the local Court who replied "As far as this Court is concerned matters stand struck out…”. They did nothing till December 2012 when they issued an application to have matters reinstated.

 

My point is the original Order was made in June 2011. They had to apply to vary by September 2011. Their Applicaion was made in time but was made to the wrong court. Then they gor a hearing - again at the wrong Court. This was vacated.

 

My argument is essentially that they failed to vary in September 2011 and despite knowing this they have waited 15 months to make the application to reinstate. This is contrary to CPR 3.9 (I only know about it because they are arguing that they have complied with this rule)

[citizenB]

Will send out an S.O.S to someone who might be able to help

[bottomburp]

thank you

[citizenB]

It will very likely be tomorrow before they receive the message - but they will look in

[42man]

It sounds like a complete cock up. You need closure on this, as it stands I presume you will need an affadavit / and witness statements outlining exactly what has been said here, I would suggest that you order the judge to place a bankruptcy restraining order on them. You mentioned that you have a solicitor is he/she helping you at all ?

[bottomburp]

I don't have a solicitor acting for me on this. The creditor did have an undertaking form my solicitor who wsa acting for me on another matter. I have always acted on my own in this case but the Bank knew how to get in touch with me through the solicitor etc as they had an undertaking from him.

 

At the moment I am working on my skeleton in response to the application.

 

Yes, what I want is closure. This has dragged on for too long and I am coping with anumber of High Court claims for huge amounts of money which this is totally disrupting. Also I think this has come to the stage of being vexatious as the order they are no trying to get reinstated / varied is more than 18 months old.

 

At one point they put so much pressure on me that I ended up in hospital.

 

What is a bankruptcy restraining order? How do I get that.

[42man]

You can request the judge to make a bankruptcy restraining order on the other party if it is found that they are being vexatious (basically ordering them to stop using the insolvency rules)....but it could depend on the judge on the day as they do vary. It may also be that you may have to make a separate order against them. (which i'm afraid I don't know the process)

[bottomburp]

OK 42man, This is very helpful. Thank you.

 

I'll do some research on this and incorporate it into my skeleton.

 

Fingers crossed...

[42man]

If you can quote High Court law then this would be useful (as i'm sure you may already know) You may like to have a look here - http://leadingcounsel.co.uk/articles/2009/10/23/making_someone_bankrupt5/